The Supreme Court probably reached the right result in its 7-1 decision striking down all-male education at the Virginia Military Institute, given the state’s failure to offer any genuinely equal opportunity to women.
But even so, the broad sweep of Justice Ruth Bader Ginsburg’s June 26 majority opinion in United States v. Virginia could end up doing more harm than good. The Ginsburg opinion contains some powerful and persuasive reasoning. But it unwisely and unnecessarily leaves a cloud over all single-sex education, especially in public institutions; it raises too high the constitutional barrier against sex-based governmental distinctions, at a time when sex discrimination by government is simply not a very serious problem; it flirts obliquely with the unprincipled double standard sought by many feminists, who want sex-based programs for females only; and it reads a bit too much like a symbolic affirmation of triumphant feminist ideology rather than a sober exercise in constitutional law.
Most of these points are well made in Justice Antonin Scalia’s dissent, which unfortunately undermines its own credibility by featuring wildly hyperbolic claims that the decision "shuts down" VMI and will "destroy" the place.
Hyperbole aside, Scalia may well be right- although I hope he’s wrong-in asserting that the Court’s rationale "ensures that single-sex public education is dead."
This prospect is especially troubling at a time when many educational experts and some feminists are citing powerful evidence that single-sex education can benefit girls and boys alike, and when there is a crying need to encourage experimentation with alternatives to current educational orthodoxies.
The Supreme Court seems likely to rule this year that the Virginia Military Institute’s long-standing exclusion of women denies them the equal protection of the law. Maybe the Court should.
But the most important thing about the case (United States v. Virginia, set for oral arguments on Jan. 17) is not the future of VMI. It is, rather, the threat to the future of all public single-sex education-and even private single-sex education-posed by the unwise legal doctrines now being urged upon the Court by VMI’s main adversaries.
The Clinton Justice Department and some liberal feminist and civil rights groups are seeking an unprecedented holding that all gender classifications are subject to the same "strict scrutiny" under the equal protection clause as racial classifications.
Such a ruling would (among other things) allow single-sex educational programs only if "narrowly tailored" to serve a "compelling governmental objective." In practice, it would erect a virtually insuperable constitutional barrier to any form of public single-sex education, for men or for women.
And this at a time when evidence is rapidly accumulating that single-sex schools, colleges, and classes within coed institutions bring out the best in many students-especially adolescent girls and college-age women, many of whom flourish in women’s colleges and in all-female math and science classes in coed schools.
Although the Clinton administration feebly denies any agenda to prohibit public (or private) single-sex education, it suggests in the same breath that any single-sex program can be justified only by a "compensatory purpose." That’s code language for an affirmative action, redress-for-past-discrimination, double standard that might allow some single-sex programs for females, but not for males.
Racial preferences, or affirmative action, or quotas, or call-them-what-you-will, are back in the news:
• The Supreme Court-which has picked up four new justices in four years while losing its three strongest proponents of affirmative action-has agreed to decide a racial-preference case for the first time since it struck down a state program in 1989 and upheld a federal one in 1990, leaving the law in a state of uncertainty. The case, Adarand Constructors v. Peña, involves the preferential award of a federal highway subcontract in Colorado.
• Likely to arrive at the Court by 1996 is Taxman v Board of Education of Piscataway, a case that the Clinton Justice Department has made famous-to the delight of Republicans hoping to unseat the president-by defending a New Jersey school district’s decision to lay off a white teacher and keep an equally qualified black teacher, on the basis of race.
Also headed for the Court is the most disconcerting case of all: Hopwood v. Texas, an appeal involving the University of Texas Law School by white applicants challenging the school’s policy of seeking 5 percent black and 10 percent Hispanic enrollment by admitting several times as many minority students as would a colorblind process and passing over hundreds of whites with higher grades and test scores. Virtually every elite university in the country does the same, 16 years after the Court held in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), that any regime that operates as a quota system driven by racial numbers was unconstitutional.
The supposedly temporary experiment with modest racial preferences on which this nation embarked in the 1970s has become a long-term, self-perpetuating addiction. With no end in sight, it is sapping the health of the body politic.
Both the benefits and the costs of racial preferences are familiar.
I have two daughters, 7 and 10 years old. I want them to have every opportunity to develop their educational potential to the fullest, so that they will be able to (among other things) compete against men for good jobs. And I am concerned that their opportunities will be diminished-not enlarged-by one of the feminist movement’s current crusades.
Feminist groups and their allies in the Justice Department are urging the courts to force the nation’s two remaining bastions of all-male, boot-camp-style, state-supported military education-Virginia Military Institute (VMI) and The Citadel, in South Carolina-to admit women. These cases, pending in the U.S. Court of Appeals for the 4th Circuit, seem likely to produce a major Supreme Court ruling. And if recent precedents are any guide, the feminists may well win.
I’m afraid that my daughters will be among the losers.
The immediate effect of such a decision, of course, would be to create opportunities for the tiny handful of young women who want the attend VMI and The Citadel. These institutions argue, on the other hand, that coeducation would impair the educational and social development of a considerably larger number of young men: those who thrive on the kind of harsh regimen of physical and psychological adversity that VMI and The Citadel now offer, which might have to be watered down to accommodate coeducation.
Of more concern to me is the probable secondary effect of a precedent barring all male education at VMI and The Citadel: It would raise higher the already daunting legal barriers to experimentation with any form of public single-sex education.
The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.
And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."
The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;
• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.
• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."
• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."
This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.
Harvard, like most universities, gives alumni children a break in admissions. Some Asian-Americans see this as illegal discrimination, because mostly white "alum-kids" bump Asian-Americans who would otherwise get in.
The Education Department recently ended a probe into this particular thumb on Harvard’s scales, finding it justified by the need to sustain the flow of alumni dollars and volunteer work.
But Asian-Americans aren’t satisfied. And their complaint (which also encompasses preferences for athletes, most of whom are white or black) opens a useful window onto the larger controversy over racial affirmative action.
The most obvious point is that the conservatives who denounce the unfairness of preferences for (mostly non-Asian) minorities are strangely silent about alumni preferences. This lack of symmetry renders their arguments a bit suspect.
If fairness is the end and merit selection the means, then it should be as important to make Harvard and its ilk "alum-blind" as to make them colorblind. Indeed, a strong case for discriminating against alum-kids might be inferred from a 1979 article by that scourge of affirmative action, then Professor Antonin Scalia.
After trashing racial preferences-as an effort to ease the WASP conscience at the expense of those whose immigrant parents (like Scalia’s father) "never profited from the sweat of any black man’s brow"-Scalia appended an intriguing afterthought:
"I do not, on the other hand, oppose-indeed, I strongly favor-what might be called …’affirmative action programs’ of many types of help for the poor and disadvantaged. It may well be that many, or even most, of those benefited … would be members of minority races…. I would not care if all of them were."
Hearing its most important school-desegregation case in more than a decade, the Supreme Court was presented last week with two unappealing prospects: court-ordered busing in perpetuity or (de facto) resegregation.
The Court can and should avoid both alternatives.
The immediate issue in Board of Education of Oklahoma City v. Dowell is whether the school board acted lawfully in 1985 when it ended, for students from the first grade through the fourth grade, the cross-town busing that a federal judge had ordered in 1972 as a remedy for decades of official school segregation.
The larger issue is whether the court ordered desegregation measures that bind hundreds of cities all over the country can ever be discontinued if the result would be neighborhood schools that reflect racial imbalances.
While the oral arguments at the Court on Oct. 2 focused on legalisms like the definition of a "unitary" school system and such mysteries of causation as whether today’s segregated housing patterns are a vestige of official segregation, the larger questions at stake remained in the background.
Does the educational and social value of integration to blacks and whites alike outweigh the strain on small children who are bused to schools in alien surroundings far from their homes? Does it outweigh the problems caused by white flight, which has left many big cities with racially isolated majorities of black and Hispanic students, while sapping public support for the schools?
How much of the white flight was in fact caused by forced busing? Are whites who flee busing racist or irrational, or do some have reason to worry that their children’s education will suffer?